The Public Defender Deficit, Ctd

by Chris Bodenner

As a lawyer who used to include criminal defense (including indigent defense) among my practice areas, I will agree with the original post: there is a huge, huge disparity between the resources of the state and the resources of the criminal defendant. You should include in that disparity not only the budget of the prosecutor’s office, but that of every law enforcement agency that investigates and enforces the law, including the police and sheriffs departments, state police, regional drug task forces, federal and state bureaus of investigation, and the like. The State provides very limited resources to indigent defendants, when itself has practically unlimited resources available to prosecute. It is not a fair fight, but criminal defense attorneys do the best they can with what they are given to work with.

Another goes into more detail:

When a prosecutor needs something checked or needs a witness, a staffer places a call to the police and it’s taken care of; when a public defender wants something checked, s/he pays for the investigator out of the office budget. When a prosecutor in an arson case wants an expert, he calls the fire marshall’s office, and there’s no budget impact; the public defender has to find and pay for any help out of their budget. How about a multiple-defendant case? One prosecutor, but each defendant requires a separate attorney, most of which have to be hired outside the agency, at the agency’s expense, to prevent conflicts of interest.

The list goes on, but the important point is that if you segregated out all the government expense post-arrest and compared it to the public defender’s budget, the resource gap would be even more shockingly large.

Another reader:

“It should come as no surprise, then, that you’re more likely to wind up in jail if represented by a taxpayer-financed lawyer than by one you hire yourself.” I am a public defender in Florida and I have to push back against this.

Granted, I came out of a top law school with a robust loan repayment assistance program and I practice in one of the best public defender offices in the country, so my experience may not be representative. However, I disagree with the contention that funding disparities are the primary reason my clients are more likely to be incarcerated than defendants with private attorneys.

All of my clients have one thing in common: they’re indigent. Otherwise, they would not be entitled to my services. What does that mean? For starters, they tend to be underemployed or unemployed. After any conviction there is a sentencing hearing, where the defense attorney proffers mitigation in order to get a better sentence. One common argument is “Your honor, my client has a job and if you jail him for even a month he’ll lose his job. He’ll become destitute. The family that relies on him will become destitute.” This is a powerful argument and judges respond to that.

My clients tend to be undereducated. They tend to have prior histories. They tend to be black or brown. Studies show that similarly situated minority defendants get harsher sentences than white defendants, even controlling for the nature of the crime and the defendant’s prior convictions.

The person who can hire a private attorney tends to be the accountant who got a DUI after a happy hour or the doctor who smacked around his wife in a fit of anger. It can cost more than $5,000 to defend a petty misdemeanor if a trial is involved. Defending a serious felony can typically only be afforded by the affluent.

Yes, I wish I had more funding. I wish I had a smaller case load and more investigators. But even for the smallest misdemeanor case, I can pay $2,000 to an expert witness without even requiring office approval. In fact, the prosecutors that I fight against have higher case loads and routinely complain to me about their inability to adequately prepare their cases. I am always better prepared than they are for a case. Literally always.

My clients are more likely to go to jail. This is true. It’s not because of my inability to match the prosecutor’s ability to investigate or prepare for trial. It’s because of their socioeconomic background coupled with draconian maximum sentences that result in plea deals for the vast majority of cases.

Another:

Allow a public defender to offer her perspective. But where to begin? With the fact that I have a law degree, two master’s degrees, and a PhD from an Ivy League university, but still make only $40,000 per year at my job as an appellate-level public defender? My colleagues doing similar work for the State with similar levels of legal experience make at least $25,000 more. The disparity is a function of the particular politics of my state, but there is some level of disparity in every state, even though both public defenders and prosecutors are paid by the state.

I wonder if the ADA who wrote about how difficult her/his job is as compared to the defense really believes this. Whether an indigent criminal defendant is represented by a public defender or a court-appointed private attorney, he or she is being represented by someone with a lot of education and little money. I make $40,000 a year four years out of law school. The most experienced person in my office makes $95,000 after 35 years of practice and a U.S. Supreme Court victory. Court appointed attorneys in my state are paid about $60 an hour for their work, and they are at the mercy of the judge who signs their fee statement. The same judge who just presided over the trial and likely got frustrated with their many objections gets to decide whether they actually should get paid for the number of hours they claim to have put into the case.

These attorneys go into court knowing that the judge is going to have every reason to rule for the State on every contested issue. It is true that the safest defense is often one which involves calling no witnesses, but that doesn’t mean that the defense attorney’s job is easier. The State starts with the moral high ground and always has more resources at its disposal: law enforcement officers to investigate and put pressure on witnesses, money for expert witnesses, discovery rules that can be bent to their advantage … the list is endless.

I understand that prosecutors and defense attorneys have chosen their lot, and I don’t begrudge prosecutors their higher pay and advantages in the courtroom. But for any prosector to claim that advocating for an indigent criminal defendant who has, by definition, been charged with a crime against the State is easier than being the champion of law and order and protector of public safety is just ludicrous.

One more:

As a public defender in Oregon, I’m paid for my work, but at a level far below that of the prosecutor. An entry level lawyer at my office starts out around $40,000 a year, and the senior staff here caps out at $75 or $80k. Across the street, the district attorney pays its staffers $45,000 a year on the low end, with pay capping off at beyond $100,000 for experienced attorneys. In other counties in Oregon, it’s common to have entry level prosecutor positions start at least $20,000 a year more than public defenders in the county. (Oregon is considering legislation this year, HB 3463, that would require public defenders to be paid at equivalent rates of prosecutors in their respective counties, by the way.)

Your reader who talks about all the other things prosecutors do that public defenders don’t? Please. First, the police officer who writes a report has done almost all the heavy lifting on a prosecutor’s case. A prosecutor rarely interviews witnesses on their own, because if they do, they have to discover any exculpatory information they write down under Brady v. Maryland. Most cases that I’ve taken to trial, I’ve spent countless hours tracking down witnesses, verifying my client’s statements and coming up with a theory of defense. All the prosecutor has to do is call each witness the police officer talked to and prove the elements of the crime, which is little more than checking the boxes. As for discovery, in most states, there are reciprocal discovery rules that require the defense to turn over evidence that they intend to use at trial. So both sides have to employ staff to produce discovery.

Lawyers should be paid comparably on both sides of the aisle. When you can’t pay public defenders as much as the prosecutor, it’s harder to keep and retain good lawyers. When you don’t have an effective lawyer fighting for an individual’s rights, it not only harms that individual but society as whole. Who do you think foots the bill for a new trial when a client’s underpaid lawyer missed some critical evidence or failed to investigate a key issue and the client is granted post-conviction relief?